*1 Wоrkmen’s Acts. See generally, N.M.Digest, Workmen’s Compen- «=»
sation, No. 11. As stated in Gonzales Copper
Chino
(1924): kept well in mind
theory which the Workmen’s Com-
pensation Acts of the several states were more,
adopted was to substitute human-
itarian and system economical of compen- injured
sation for workmen or their de-
pendents death; in case of their pro- speedy
vide a inexpensive and method such might be made employees such dependent or those
upon them and which harmony is more in
with modern of industry methods torts, common-law liability for
usually involved long, tedious expen-
sive litigation, produced and often ill feel- ** ing employer between employee.
(Emphasis added.)
Affirmed.
IT IS SO ORDERED.
WOOD, J., HERNANDEZ, C. J., con-
cur. CASIAS,
Ramon R. Plaintiff-Appellee, COMPANY,
The ZIA Employer, and Unit Fidelity ed Guaranty States Compa Melendres, Silver, Walter K. J. John ny, Insurer, Defendants-Appellants. Hannаhs, Montgomery, Andrews & Santa Fe, defendants-appellants. for
No. 3842. Wentworth, Tucker, John L. Steven Court of Appeals of New Mexico. Jones, Wertheim, Gallegos, Snead & Santa Fe, plaintiff-appellee. May 17, 1979.
OPINION
WALTERS, Judge.
Appellants
plaintiff-appellee
urge'
Casias
total
was awarded
*2
79
at an
continuing
incorrect rate
body” resulting
disability,
because the
in
accident
7,
occurred on October
1976
he
and
degenerating ability
became
to function
and
pain
totally
permаnently
and
disabled
which
operative
“accident”
constitute
28, 1977, during which time the percentage
brings
about
“accidental
of
state
Moorhead;
disability,
on the
of
injury”
date
(see
52-l-41(A), N.M.S.A.1978),
upon Herndon, supra.
which
based,
maximum
is
in-
Sutin,
opinion
Herndon
cited
in the
creased from 78% to
Appellants
89%.
con-
above, discussing the issue of “accidental
tend the lower rate
ap-
should have been
plain-
injury” within thе factual context of
plied against
weekly wage on
4,
inability
fall on
1975 and her
tiff’s
7,
52-1-20,
October
1976 because
N.M.S.
1975,
2,
September
continue
work
A.1978, provides for determination of the
wrote:
weekly wage “at the time of the accident.”
that no decision
argue
Defendants
It appears, from an analysis of the two
any
Mexico
that
condition
New
“holds
sections
to,
above referred
that
terms
dеvelops pain
but which does
“time
(§§
A,
of the accident”
-20
‘inju-
body
of the
result malfunction
B(l), -(2), -(3),
-(4);
injury”
and
of
“time
accident,’
ry
required
caused
(§
B);
(§
“date of disability”
52-1-
40);
(§
of
injury”
“date
accidental
52-
support
position,
In
defendants
1-40),
were
used
in the
rely strongly
Department
v.
on Towle
Workmen’s
with some
Act
Highway,
A.2d
Transportation,
318
State
It,
course,
lack of selectiveness.
is more
a
(Me.1974)
the court
71
where
held
frequently
compensa
the case workmen’s
claimant,
who
sweeping operator,
a street
tion
suits that the date of the
strain
a
postural
suffered a
over
and the
all coincide. But
“personal
a
time had not suffered
when
lapse
there
a
any
of time between
arising out of and
incidents,
appeals
those
present
of the
note,
employment.” We
course of his
nature have
they
resulted and
become
however,
that if
court also stated
that the
the fiber from which the
decisions
La
aggravates or acceler-
the stress of labor
Inst.,
Mont
Military
v. New Mexico
92 N.M.
development
preexisting
of a
ates
1979);
(Ct.App.,
595
774
Hern
P.2d
infirmity causing an internal breakdown
Schools,
don
Albuquerque
v.
Pub.
structure,
part
personal
a
(1978) (rev’d
N.M.
the fall on June
injury was
(Ct.App.1972);
Gomez
pain
severe
that disabled her.
If this
Corp.,
Hausman
strain caused or
“collapse”
accelerated a
LaMont,
(Ct.App.1971);
weakness,
from back
it was a malfunction
Herndon, supra.
body
an
(3)
disabling
many
event
occur
injury;
not,
if it did
it was not
*3
years
months
after
or
the work-relat-
accidental.
injury
Whether the
was acci-
accident, LaMont, Gomez, supra,
ed
dental due
the strain
to
over a three
compensable;
and then become
or it
month
of time was an issue of fact
may
product
“acci-
be the
of a new
decided in
favor.
resulting
bodily
dent”
from the
mal-
It is necessary
reconcile
to
these decisions
ultimately
function
induced
relating
limitation,
to
statute
Moorhead;
Herndon;
original injury,
compensation issues,
and rate of
be-
Torre, supra.
De La
cause at
might
first blush one
believe that
(4)
compensation, being
The
in
entirely
propositions
different
were deter-
relationship
bear
tended to
some
to
mined and
be confused. We
capaci
wage earning
the workman’s
believe the decided cases have refined the
Co.,
Drilling
Kendrick v. Gackle
meaning of
to
entitlement
and the amount
113,
71 N.M.
376 P.2d
176
of compensation
very
some
princi-
to
basic
wage-
as of the
measured
time that
ples,
always
having
Court
in mind that
e.,
affected,
earning capacity is
i.
the Act
expresses
itself
the intention and
LaMont;
disability.
Moor
policy of
that employees
this State
who
head, supra.
suffer disablement as a
injuries
result of
The logic which dictates that
the reason
causally
work,
connected to their
shall not
ing expressed
con
in the decided cases be
become dependent upon
pro-
the welfare
together,
respect
sidered
with
to limitations
grams
State,
Codling
v. Aztec Well
and rate
compensation,
is demonstrated
Servicing Co.,
89 N.M.
unless a fol long v/ork-related there been pro- lowed duces an jurisdiction, g., e. Langley which becomes disa- bling. Navajo Lines, Freight Inc., Willcox v. 369 United Nuclear Sapin Stores, Homestake (1962); Brown v. Safeway Inc., (Ct.App.1971); (Ct.App. Pacheco N.M. v. Springer 1970). Corp., Big flatly, Anaya stated formula, then, Industries, Inc., Three to determine “[cjompensation paid, to be is ex- amount paid only disability.” when there is a It is 52-1-20 provisions from the §§ tracted clear from these cases “date of acci- pro- -42. and 52-1-41 and injury” dent” and “date come to applicable quotient multiple or vides mean “date when injury mani- daily hourly monthly, which a or workman’s fests itself.” multiplied or to ob- wage shall be divided Thus, tо apply the same construction weekly wage; tain his all provisions is not minimum establishes the maximum and unique startling. A Subsection defines disabili- for total amounts that “wages” as the money rate at which serv the workman’s ty, regardless of recompensable ices are under the contract in- graduated weekly wage, requires of hire “at the time of the accident.” Sub when one hundred crease until *4 requires computation section B of benefits weekly wage in the percent average monthly, daily the weekly, hourly or allowed; and the maximum State became remuneration which the workman was amount of total dis- 52-1-42 makes the earning injury.” “at the time of the percentage of dis- ability, multiplied by the further subsections under B all refer to for the ability, the to be recovered amount apparent “time оf the accident.” that degree partial of disabili- court-determined Legislature the used the two terms inter help- may be ty. hypothetical A illustration We, changeably indiscriminately. ful: therefore, apply meaning the “date when compensable injury
the manifests itself” or $1,260.00 the W a month at 1. earned when “date the workman knows or should perma- time he suffered a total and compensable inju know he has a compensable injury nent and disabili- ry” to all portions the of Workmen’s 1977. 52-1- on Section Compensation Act where the terms “time monthly B(l) requires that accident,” of injury,” “time of “date of dis multiplied by 12 and then wage be ability,” “date injury,” of accidental or divided 52. used, import, words of similar recogniz are = $15,120 x 12 $1,260 ing doing that acknowledge so we = = average ($290.77) W’s reality possible injuries $290.769 latent and that wage. weekly рayment partial is a substi weekly average 2. that Assume wages tute for formerly earned July 1977 was wage in the state on workman at the longer time when he can no provides earn wage. $210.50. the same Section travesty What a it would be a percentage that, award a of a lower the workman for total wage injured employee earned if he maximum of shall receive a 89% had wage received increases between the weekly wage, or: average date of the accident and the date he was no = ($187.35) x 89% $187.345 $210.50 longer inflation, able to work. In times of provides further that 3. present, such as the might he well be rele re- totally injured workman shall a gated to the system State’s welfare to meet ceive, during period of his disabil- the ever-increasing monetary demands weekly ity, average two-thirds of maintaining a decency, standard of dignity wage. (1 self-respect Larson’s 2.20), Law if his wage-earn increased = x $193.844 $290.77 | ing ability between accident and disable average 4. of W’s Since two-thirds ment were recognized. not We do not be than 89% weekly wage greater lieve intended, so its weekly average hypothetical enactments thus are read give most state, may W wage beneficial interpretation to them favorable to the from Au- $187.35 workman. awarded more than
gust through then, Applying, 1978. the rule that the date of However, 1, 1978, July according on a workman’s and benefits A, provisions are to be of the “date he determined and as when the or “when manifests itself” become entitled to 100% of the workman or know he has state, knows average weekly wage in the or we sat- $210.50, injury,” suffered a are since that amount is still less properly isfied that trial court than W’s average weekly actual higher to Mr. Ca- wage. July And if the 1978 aver- Moreover, weekly average sias. since age weekly wage in the state is more wage in the state increased more than greater (the $2.00 $210.50 1, 1978, $172.46, July then Mr. $2.00 weekly wage Casias became entitled to the entire 100%of 1977), W shall then receive 100% He in the state. greater (so long аmount it only is so limited he is entitled to because $290.77) more than from two-thirds of his own D, 1978forward. § 52-1-42 N.M.S.A. ($182.60) percentage maximum 1978. ($172.46), average weekly wage in the state Thus, a disability compensa- workman’s whichever is less. tion award increase over 600-week Tree, Hanging Gilliland per from maximum $90 week In and Ideal Basic July 1975, through 100% of the dustries, Inc., Evans, *5 weekly wage in the state on and after urged appellants, 1, 1978, but it never excеed two-thirds case, similarity no factual to this since each actual weekly amount of those claimants simultaneous earning workman was at the time his dis- accident, injury and death or disablement. ability commenced. No the Legisla- doubt To have awarded benefits ture, cognizant Report of the Nation- computed respective as the dates of the al Commission of State Workmen’s Com- аccidents in Gilliland and Ideal does pensation published (see Laws in present a conflict with what we have said Study Report “Insurance Committee here. Thirty-second Legislature”), sought to al- leviate impossibility ri- stretching appellee’s final re One matter gidly fixed income to the permanently quest attorneys dis- fees for their services noted, years appeal. abled workman the matter thоse As we have follow- stipu ing disability upon trial when he was submitted to the court would be faced with extra an erosion lation. The record does not indicate benefits, value of his ap ordinary services below counsel for escalating enacted the increase pellee, sub but does an award of in its disclose 1975 amendment § [then Appellee is stantial fees the trial court. 59-10-18.3, N.M.S.A.1953], § attorney’s fees for his With respect to par- the instant appeal. counsel’s services on Gearhart stipulated ties earning was $275.40 Eidson, (1979); 595 P.2d per week both at the time of the Schools, Albuquerque Herndon v. Public 1976and when he became unable to work (1978); Ortega 1977. Two-thirds of $275.40 is $182.60. Highway Dept., 77 N.M. New Mexico State They stipulated also if (1966). were to date, be determined as of the 1976 Judgment is affirmed. $114.61; the rate to be would be if IT аpplied, IS ORDERED. SO figures $142.59. Those accurately represent the maximum entitle- computed JJ.,
ments as SUTIN, concurring accordance with HENDLEY 52-l-41(B), N.M.S.A.1978. in result. Security result). Employment to be fixed HENDLEY, (concurring fixed The Commission Commission. Judge Walters’ I concur in the result of at the effective compensation, amount of particularly, under the facts opinion and per week disability, at $142.59 time of here, aver- holding that the date the 52-1-41, wage. average weekly See § age computed is the “date weekly N.M.S.A.1978, ch. Laws enacted it- compensable injury when the manifests says: B 8. Subsection self.” state wage in the average weekly [T]he appeal agree I fees on employment by the determined shall be $1,000. * * should be *. security commission enacted in is enti- SUTIN, result). Judge (concurring in tled average weekly “Determination I сoncur in the result. wage.” provides formula the Workmen’s Legislature The enacted court shall determine the Compensation century ago. By Act a half wage. The was com- additions, amendments, rewriting of its puted by the remuneration the workman Legislature created a provisions, the receiving was “at time of the accident.” monster that often defies the wisdom me, To long complicated section dexterity of Houdini. I Solomon and impliedly repealed by 52-l-41(B) en- harshly write to alert the years acted later. a Workmen’s Act need of question The for decision is: lan- based common sense and clear begin to employer At what rate does an guage challenge today; that meets the weekly pay the course, does provided, Supreme Court wage, the in effect аt the time of deny publication opinion. disability? accident or the time of “accident,” interplay the words statutory provi- Let us note some of the injury,” “disability,” “injury,” “accidental sions. partial disability,” on a cross- “total and *6 lawyers and puzzle please would the word “Waiting peri- Section 52-1-40 entitled interplay in judiciary. the But to use the od” reads: compensa- the determination of workmen’s compensation No al- benefits shall be conform to the nor- * * * tion benefits does not any lowed for Legislature. We have mal wisdom of the which does not result in the workman’s judicial puzzling problems by these resolved death, or in which for disability lasts Nevertheless, there has interpretation. days; provided, more than seven how- disagreement of what we be- been constant ever, period if the of the workmаn’s dis- in each case. equitable lieved to be fair and ability lasts for more than four weeks from the date of his accidental present Let case. us turn to the compensation benefits shall be allowed was Octo- The date of disability. [Emphasis from the date of 1,1976, the rate ber 1976. Effective added.] the workman compensation paid to be average weekly wage fixed was 78% of the 52-l-41(C) rеads: Section Security Employment the Commission. state, wage in the the amount of com- The Commission fixed B in Subsection provided determined as time of the acci- pensation,' effective at the section, for applicable be shall dent, per week as the at $114.61 compensation period during full weekly wage. occurrence payable, when the date disability was falls within The date of an accidental fol- commencing January 1 the rate of year 1977. Effective calendar determination. lowing the June 30 [Em- the workman in- compensation to be phasis added.] creased to 89% of the applicable disability. law on the date of reads: Section 52-1-48 disability In this total commenced shall The benefits that a workman re- January compen- of 1975 rate ceive periоd the entire of disabili- upon statutory sation should be based ty, death, the benefits shall for be [Emphasis effect at that time. on, to, based and limited the benefits in added.] effect on the date of the accidental resulting disability death. authority De La Torre was not [Em- phasis proposition stated. De La Torre involved added.] disabilities, separate accidents, two two 52-l-41(A) begins: Section separate case, we statutes. In the instant disability For total the workman shall are involved with one one disabili- receive, during of that disabili- one statute that covers the date of * * ty compensation] rate of *. [a disability. the accident and the date of [Emphasis added.] However, agree I principle, do rule partial Section disability, Torre, De La law effective at the language. uses the sаme disability time of controls and should be used, We language note that as relat- applied to the instant case. benefits, ed to compensation speaks in Herndon, In Judge opin- cited in Walters’ “disability,” terms of not “accident.” ion, I said: at in effect both suffered total disabil- [Plaintiff] date of the at accident and the date of 2,1975 ity September as of and is entitled disability. There was one acсident and one benefits as of that date. disability. I choose to the em- hold [Not 1975.] ployer begin pay workman his In Military Lamont v. New Mexico Insti average weekly rate from dis- tute, ability because a workman is not entitled to Court, without then reference happening for the mere an effect, decided that amount fixed accident. January My opinion in De La Torre Kennecott was corrеct. Copper Corporation, discussion, foregoing Based I (Ct.App.1976) misinterpret- must not be opinion. concur with Walters’ How- ed. In De La the first accident ever, opinion, in my plaintiff governed by occurred in 1967 was an fee of for serv- statute of limitations that did not toll the appeal. ices rendered in this period. Thereafter, limitation completely recovered. At time of the
second accident which occurred
amended limitation statute of 1967 which
did toll period,.was the limitation in effect. public policy it,
Because demanded we held year period the one of limitation was tolled complaint was filed in Mexico, STATE of New time. I said: Plaintiff-Appellee, applies The 1967 statute because is critical and the MONTOYA, Defendant-Appellant. Arthur law effective at the time controls. [89 N.M. at at 842.] No. 3822. Gray In Moorhead v. Ranch Appeals Court of of New Mexico.
220, 224, 561 we 1979. said: * * * Therefore, is au- Torre thority for proposition should be based